Manuela Carneiro da CunhaProfessor of Anthropology, University of Chicago

At this historical
juncture, UNESCO can play a central role in the protection of intellectual rights
in traditional culture. A widespread shift in legal thinking toward a generalized
privatization of knowledge suggests the extension of Intellectual property rights
to cover traditional knowledge. But in this paper, I argue that such a measure,
while attending to a matter of equity, would endanger the continued production
of this knowledge. To pursue both equity and preservation, I argue that traditional
knowledge should be put in the public domain, but only under two conditions:
if the public domain itself is protected from misappropriation and if there
is a fair retribution whenever such knowledge leads to commercial ventures.
Just as TRIPS (Trade-Related International Property Agreements) has ensured
that the private domain as expressed by Intellectual property rights is protected
worldwide, the public domain needs to be similarly protected from piracy. Each
country can enforce such regulation of the public domain within its own boundaries.
Yet one country’s public domain might be privatized in another country. Thus,
UNESCO and WIPO are in a unique, instrumental position to carry this project,
which is clearly within their mandate.

The
Public and the Private Domain

A double standard
prevailed until a few years ago for seeds, drugs, and other such products in
contrast to genetic resources and associated knowledge. The latter, on the premise
that they could potentially benefit all of humankind, were deemed to be its
common heritage and hence freely accessible. Seeds and drugs, on the other hand,
while equally potentially beneficial to mankind as a whole, were protected by
Intellectual property rights (Cunningham 1993). Two alternative responses to
this inequity came initially to mind (we will later see that there are more
than just two options). One’s choice seemed to be either to pursue a privatization
of genetic resources and traditional knowledge or to advocate a suspension of
intellectual property rights on products derived from them, putting these products
into the public domain. In the seventies and the eighties, and in connection
with seeds, this latter option seemed to gain some ground, particularly through
the FAO (Food and Agriculture Organization), which acknowledged the contribution
of generations of farmers. The version of UPOV (Union for the Protection of
Plant Varieties) that was accepted in 1975, for instance, exempted farmers from
the regulations imposed on everyone else regarding the exchange of seeds or
their reutilization from one year to the next.

In the early
nineties, privatization gained momentum. UPOV was amended in 1991 and toughened,
affording protection to plant breeders that come very close to patenting. In
1992, the Convention for Biological Diversity (CBD) established that genetic
resources should fall under the sovereignty of national states. Furthermore,
many states translated sovereignty into property, though the two concepts are
by no means equivalent. But the most drastic of all these instruments, because
of the commercial sanctions attached to it, was TRIPS, which came out of the
Uruguay Round of the GATT Negotiations in 1994. TRIPS provisions are mandatory
for every member of the World Trade Organization. Under TRIPS, Intellectual
Rights were granted protection irrespective of the country where the right had
originated. States must internalize legislation accordingly, although at different
paces; developing nations were given until 2000 to comply, whereas the least
developed countries were granted another five years.

Although I
lumped them together for the sake of pointing to the growth of privatization,
CBD and TRIPS respond to very different interests and even contradict each other
in certain aspects. CBD was drafted under the auspices of the United Nations
in the context of the Rio Earth Summit and is perceived to take into consideration
the interests of resource-rich countries, most of them in the Southern Hemisphere.
It was signed and ratified by more than 170 countries. The most notable exception
is the United States, whose President signed the Convention in 1993, but whose
Congress refused to ratify it. The United States, on the other hand, was the
main force behind the TRIPS Agreement, which ultimately serves its technological
preponderance. As mentioned above, commercial sanctions in the form of trade
retaliations account for the persuasive power of TRIPS.

The CBD explicitly
deals with the rights of local people, and it does so in collective terms. Article
8(j) recognizes that each contracting party shall

subject
to its national legislation, respect, preserve and maintain knowledge, innovations
and practices of Indigenous and local communities embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity
and promote their wider application with the approval and involvement of the
holders of such knowledge, innovations and practices and encourage the equitable
sharing of benefits arising from the utilization of such knowledge, innovations
and practices.

How are countries
to implement the CBD? Several general meetings have already been convened, the
fifth held in Nairobi in the spring of 2000, and the issue of Indigenous and
local knowledge at these meetings has gained unprecedented importance. Under
the sponsorship of Spain, two events to discuss this single issue were organized.
While the first one was a seminar, the second, held in Seville about two months
before the Nairobi Convention in 2000, brought in official delegations from
over one hundred countries and was preceded by an Indigenous Forum.

Thus, the nineties
saw a growth in public visibility of the issue of local and Indigenous knowledge.
Paradoxically, they also seem to have confined mainstream institutions searching
for appropriate approaches to the issue within the narrow boundaries of the
decade’s generalized push for privatization.

The defense
of the expansion of the public domain, important in the UN until the eighties,
and which echoes debates advocating public domain for software (see Boyle 1996),
lost some ground. Rather, mainstream institutions were arguing for the extension
of intellectual property rights to local knowledge with all their associated
features and in particular an exclusivity clause.

The problem
with applying intellectual property rights to traditional knowledge and enforcing
an exclusivity clause is that it changes the basic ways this knowledge is produced.
If that knowledge were simply a legacy from the past, there would be no problem
at all. But knowledge, as part of culture, is essentially innovative. Local
knowledge is based on speculation and experimentation, and it needs to have
a proper institutional base. Moreover, traditional knowledge is part of a way
of life that has inherent value in itself.

What then is
a workable legal logic? Indigenous people have been arguing in several international
forums that one cannot separate traditional knowledge from a much larger context,
which includes land and sociability. But even if one were to isolate and focus
exclusively on traditional knowledge, would the aim be to use it, along with
its practices and innovations, for profit in the market, or more inclusively
to promote its continued existence? Is it merely present knowledge we would
be discussing, or present and future knowledge? That is, are we focusing on
available knowledge or rather on the processes that produce knowledge? “What
is Traditional in Traditional Knowledge,” the final document of the Convention
of the Parties in Buenos Aires in 1996, reads, “ is not its antiquity but the
way it is acquired and used.”

It is sometimes argued
that there are radical differences between contemporary western systems of knowledge
and traditional knowledge. Whereas there are indeed important differences, lumping
together all traditional knowledge systems might underplay precisely what needs
to be emphasized: the extreme diversity of these systems. The real conundrum
is, as I see it: how is one to organize the interface, not between two very
different systems, but rather between one globalized IPR system and a multitude
of different local regimes with specific colonial histories?

The issue therefore
cannot be discussed in the abstract. Let us take as an example one proposal
that is on the table and that has been gaining ground in Ethiopia and in many
Latin American and English-speaking African countries, although it originated
in Southeast Asia. I am referring to the Community Intellectual Rights as they
were originally proposed by the Third World Network (Nijar 1994, 1996). Note
that the term property is conspicuously absent in the expression. The basic
idea is that traditional knowledge should stay in the public domain for anyone
to use, but that originators should share in the benefits when it is used for
commercial purposes. Furthermore, these rights should not be subject to time
limits. This is in stark contrast to contemporary practice of IPRs, which requires
exclusivity and a limited timeframe.

In other words,
the expectations of the two systems are reversed: free access and public domain
versus monopoly and secrecy; unlimited time frame for intellectual rights versus
loss of intellectual rights after a certain time.

It is worth
remarking that in the seventies and the eighties, UNESCO and WIPO (World Intellectual
Property Organization) devised instruments such as the domaine public payant
to address similar issues in their dealing with the protection of folklore.
Domaine public payant is a system by which a user of materials in the
public domain is required to pay for a compulsory license. UNESCO and WIPO issued
the Tunis Model Law in 1976, which dealt with folklore among other copyright
legislation. In 1982, they issued the “Model Provisions for National Laws on
the Protection of Expressions of Folklore Against Illicit Exploitation and Other
Prejudicial Actions,” which was followed by its international instrument counterpart,
the “Draft Treaty for the Protection of Expressions of Folklore Against Illicit
Exploitation and Other Prejudicial Actions” (Kuruk 1999, 813-16). Although much
could be argued in relation to the states being the recipients of the domaine
public payant fees and there being no necessary provisions for channeling
them to the local people, the fact remains that this is an important attempt
at dealing with the intangible heritage.

Protection of the Public Domain and the Role of UNESCO

Because of
TRIPS, countries have been obliged to respect within their boundaries the intellectual
protection granted by other countries. But the converse is not true: no generalized
obligation exists for countries to recognize each other’s public domain. As
a result, knowledge that has been in the public domain for generations in one
country might be privatized and enjoy IPRs in another country. The original
country is not only excluded from benefits but also ironically obliged by the
TRIPS Agreement to honor such an intellectual right. What was originally in
the public domain in the country could come back, thanks to these regulations,
as private property.

This being
the situation, it is no wonder that accusations of piracy are being launched
against First World countries. Australian breeders are being accused of using
material held in trust by the Consultative Group on International Agricultural
Research (CGIAR) germplasm banks (in the public domain) and patenting it (RAFI
1997). The United States Patent Office (USPO) granted a patent to a variety
of ayahuasca, a plant known all over the western Amazon for its hallucinogenic
properties. Stabilization of the extract of widely known Indian neem was sufficient
for the USPO to grant it a patent, which was subsequently acquired by a giant
corporation, W. R. Grace & Co. Indian NGOs are disputing foreign patents
on thirteen traditional products, of which the most well known is neem. A notable
decision, a first, was achieved in regard to another U.S. patent on turmeric.
This patent was revoked by the USPO in 1997, two years after having been granted,
after the New Delhi-based Council for Agriculture Research raised objections
on the basis of Indian prior traditional knowledge and use of the substance
(Shiva 1997).

That a patent
on turmeric could have happened in the first place can be partly explained by
still another set of double standards in the U.S. patents procedures. Internally,
prior art can be proved, as it should be by its very nature, through public
use. But for foreign public domain to be recognized in the United States, a
written and accessible source is required (Sections 102 a and 102 b of U.S.
Patent Law, personal communication by P. Ossorio).

The situation is
so unclear and volatile that major germplasm repositories, such as the Kew Gardens,
have temporarily suspended providing material on request and the CGIAR banks
have called for a moratorium on granting patents on material they hold. Understandably,
so has the Coordinating Body for Indigenous Organizations of the Amazon Basin
(COICA).

The matters
I have been discussing are not merely legal. They have a strong moral component.
Legally, any biological resource collected prior to the Convention for Biological
Diversity is not bound by its rules. The collector does not have to recognize
the source country’s sovereignty, nor does the collector have to acknowledge
or reward in any way the people who conserved the resource and first experimented
with it.

Yet, on moral
grounds, important bodies like the aforementioned Kew Gardens and the CGIAR
banks feel uneasy with the situation and are struggling to set guidelines. Ethnobotanical
databanks, from which many pharmaceutical companies get relevant information,
are likely to be involved soon in similar ethical concerns. Similarly, academic
researchers have moral qualms about publishing any ethnobotanical data, since
this amounts to putting it in an unprotected public domain, free to be appropriated
by anyone.

In short, this
state of affairs is hindering many kinds of scientific, educational, and cultural
activities.

No country
on its own can ensure that other countries will respect its internal regulations
unless an International Convention is subscribed to. This is where UNESCO and
WIPO can have a decisive role. They could develop an international agreement
under which countries could make traditional knowledge publicly available, with
the provisions that:

it would
not be privatized in other countries

local and
Indigenous communities would share in the benefits of commercial initiatives
or products that derive from their knowledge, for example, through an updated
version of domaine public payant

One might argue that the attempt at enforcing such a model in relation to folklore
failed in the eighties for lack of political support. Neither the “Model Provisions”
nor the “Draft Treaty” for the Protection of Folklore were adopted anywhere.
And yet, one has to consider the unprecedented mobilization of traditional people
and some governments around the issue of local and Indigenous knowledge after
the Convention for Biological Diversity of 1992. This is a totally new situation
that would permit UNESCO to launch a successful initiative.

Coombe, Rosemary. 1998. The Cultural Life of Intellectual Properties: Authorship,
Appropriation, and the Law (Post-Contemporary Interventions). Durham: Duke
University Press.

_____.
Intellectual Property, Human Rights and Sovereignty: New Dilemmas in International
Law Posed by the Recognition of Indigenous Knowledge and the Conservation of
Biodiversity. <htttp://www.law.indiana.edu/glsj/vol6/no1/coom.html>.
Indiana Law School Web Team.

Kuruk, Paul. 1999. Protecting Folklore under Modern Intellectual Property Regimes:
A Reappraisal of the Tensions between Individual and Communal Rights in Africa
and the United States. American University Law Review 48:769-849.

Nijar, Gurdial Singh. 1994. Towards a Legal Framework for Protecting Biological
Diversity and Community Intellectual Rights: A Third World Perspective.
Penang: Third World Network.

_____. 1996. In Defense of Local Community Knowledge and Biodiversity.
Third World Network Paper 1. Penang: Third World Network.

Posey, Darrell. 1996. Traditional Resource Rights: International Instruments
for Protection and Compensation for Indigenous Peoples and Local Communities.
Gland, Switzerland : IUCN, the World Conservation Union.